Henning was accepted into the Plan effective August 9, 1976 and premiums for participation were thereafter deducted from his salary.

The group disability policy in question, No. 23126-G, was originally issued by Metropolitan to General Electric on January 1, 1970. Several amendments have been made to the policy since its inception date. General Electric had sought such a policy as a result of negotiations with the International Union of Electric, Radio & Machine Workers and other unions representing General Electric employees, as part of the collective bargaining process. A provision in the group policy provides for a reduction in benefits to a participant by the amount received from Social Security for disability compensation. Specifically, it is stated therein that:

"Benefits will be paid monthly and will be one twenty-fourth of your normal straight-time annual earnings reduced by . . . (2) any primary Social Security benefits. . . ."
*fn1"

Plaintiff became totally disabled on April 28, 1978 and was thereby entitled to and received compensation under the Plan. Shortly thereafter, he also filed a claim for Social Security disability benefits but was initially denied by notice dated October 30, 1978. Concurrent with his Social Security claim, Henning signed an agreement with Metropolitan on October 3, 1978, which provided in part:

"In connection with my claim for Long Term Disability benefits provided under the General Electric Long Term Disability Insurance Plan, I certify that I have filed with the Social Security Administration timely application and submitted any required medical evidence for whatever primary benefits, which may be due me under the Federal Old Age, Survivors and Disability Insurance Benefits Program.

I understand that Disability Benefits under the General Electric Long Term Disability Insurance Plan are to be reduced by the amount payable for any period of time for which I am eligible for or receive primary Disability Insurance Benefits under the Social Security Act on my own account.

Pending adjudication of my claim for Social Security Disability Insurance Benefits, I hereby request Metropolitan Life Insurance Company to postpone deducting from my Long Term Disability Monthly Benefits the monthly amount of such primary Social Security Disability Insurance Benefits for which I am or may be eligible or entitled.

I agree that if this request is granted, I will reimburse Metropolitan Life Insurance Company in full for any postponed deductions immediately upon receipt from the Social Security Administration of any retroactive primary Disability Insurance Benefits to the full amount thereof. Furthermore, I agree that in the event of my failure to reimburse Metropolitan Life Insurance Company in full per this Agreement, Metropolitan Life Insurance Company may recoup the amount of the postponed deductions by withholding or reducing future benefit amounts which may become payable under any General Electric coverage for which I am insured." Affidavit of Robert Grzybowski, para. 6 and Exh. D attached thereto.

Thereafter, on November 28, 1979, Plaintiff's initial Social Security determination was reversed and he was granted such benefits retroactive to April 28, 1978. After being informed of the change in Plaintiff's Social Security benefit status, Metropolitan advised him that, pursuant to the aforementioned exclusion in the Plan and the October 3, 1978 agreement, it intended to reduce his benefits otherwise due under the Plan by the amount of such award. This set-off would also entail a deduction for previous overpayments to the Plaintiff occasioned by the retroactivity of the Social Security award. Dissatisfied with Metropolitan's decision, Plaintiff then filed an action in the Court of Common Pleas of Monroe County which, as noted above, has been removed to this Court by the Defendant.

As his sole basis for summary judgment, Plaintiff asserts that he was never made aware of the policy exclusion in question nor was its actual effect ever explained to him by the insurer
*fn2"
and, therefore, under Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974), such a limitation cannot be enforced.

The Defendant's response to Plaintiff's position is two-fold. First, Metropolitan contends that, under the factual circumstances of this case, the substantive law of New York should govern and, thus, there being no similar Hionis rule in New York insurance law, summary judgment in its favor is warranted. Alternatively, Metropolitan argues that even under Pennsylvania law it is entitled to summary judgment because the principles espoused in Hionis have no application in the group insurance policy context. Consequently, there are two legal issues for the Court to resolve: (1) the appropriate state law which should govern the case; and (2) the enforceability of the exclusion or limitation in the Metropolitan group insurance policy under that state's substantive law.

II. CHOICE OF LAW

In a diversity action such as this, we are, of course, required to apply the choice of law rules of the forum state, Pennsylvania. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); see Melville v. American Home Assurance Co., 584 F.2d 1306, 1308 (3d Cir. 1978); Jewelcor Inc. v. St. Paul Fire & Marine Ins. Co., 499 F. Supp. 39, 41 n.2 (M.D.Pa.1980). In Jewelcor, this Court described the recent shift in Pennsylvania law away from its previous "stiff" approach in choice-of-law problems, whereby the appropriate state law was determined by either the place of the injury in a tort action or the place of agreement in a contract action. Id. at 41-42. Adopting the formula espoused in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), we concluded that in Pennsylvania it was now "necessary to look to that jurisdiction which has more contacts with and more interest in the matter at issue rather than any static application of antiquated laws." Jewelcor, supra, 499 F. Supp. at 42. For purposes of our present inquiry, then, it has been aptly stated that:

The current [Pennsylvania] rule governing breach of contract actions directs the courts to make their choice of law by means of a two-part analysis that considers both the significant contacts that the contract has with the various jurisdictions and the interest, if any, that the various jurisdictions have in the subject matter of the contract.

Despite this quantitative shortage of contacts, Plaintiff argues that "a qualitative analysis of the contacts with New York and Pennsylvania and the interests of each state compel application of Pennsylvania Law."
*fn5"
In support thereof, Plaintiff contends the "most compelling" of these interests is Pennsylvania's long-standing "policy of protecting insurance consumers from unexplained policy exclusions ",
*fn6"
as discussed in Hionis v. Northern Mutual Insurance Co., supra. While no doubt this is a salutary and weighty interest in the average insurance company-individual insured setting, we believe its significance diminishes in the group insurance policy context. Under a group insurance plan in Pennsylvania "the real insured is not the employee but the entity or group of employees, and the employee is in the nature of a beneficiary entitled to receive certain privileges or benefits by reason of that insurance. Therefore, the employer, as representative of that entity, is the real agent of the insured." Layman v. Continental Assurance Co., 416 Pa. 155, 160, 205 A.2d 93 (1964), quoting 1 Appleman, Insurance Law and Practice, § 43 at 38 (1941);
*fn7"
see Hanaieff v. Equitable Life Assurance Society, 371 Pa. 560, 564-66 92 A.2d 202 (1952) (employer acts as agent of employee in contracting for group insurance); McFadden v. Equitable Life Assurance Society, 351 Pa. 570, 575, 41 A.2d 624 (1945) (same); Aetna Life Insurance Co. v. Messier, 173 F. Supp. 90, 96 (same) (M.D.Pa.1959). See also Boseman v. Connecticut General Life Insurance Co., 301 U.S. 196, 57 S. Ct. 686, 81 L. Ed. 1036 (1937).
*fn8"
In view of the fiduciary relationship between an employer and its covered employees under a group insurance plan, the public policy interests underpinning the Hionis Court's rationale are simply not as substantial in this setting. As one district court in this circuit has recently noted:

Typically, insurance companies and organizations, not individuals, enter into group insurance contracts. The organizations who purchase such policies have more bargaining power than individual consumers. Usually people with acumen in business dealings and some expertise in insurance represent these organizations. Consequently, the parties negotiate the coverage, price and terms thereof at arm's length. The rationale supporting the Hionis rule finds no opportunity for enhancement under these circumstances. . . .

Brezan v. Prudential Insurance Co. of America, 507 F. Supp. 962, 966 (E.D.Pa.1981); see Weiss v. CNA, 468 F. Supp. 1291, 1293 (W.D.Pa.1979) (in group insurance context, "the need to protect the individual purchaser from overreaching by an insurance company is minimized."). Accordingly, we conclude that the proffered interest of Pennsylvania in this matter in "protecting insurance consumers from unexplained policy exclusions" is not as strong as Plaintiff maintains.

The Defendant, moreover, insists that the state of New York has the greater interest in this controversy. Specifically, Metropolitan persuasively asserts that:

The State of New York has a substantial interest in having all group policies issued in that state interpreted uniformly according to its own state laws, and to that end has enacted statutes regulating all such policies issued or delivered in New York, regardless of the domicile of the group members.
*fn9"
Pennsylvania, on the other hand, has indicated its lack of interest in this controversy for it does not regulate the form, language, or provisions of such group policies issued in another state, even though the policy covers Pennsylvania residents. Rather its insurance laws govern only those group policies which are issued or delivered in Pennsylvania.
*fn10"
Reply Memorandum of Defendant (Doc. # 18) at 2-3 (emphasis in original) (footnotes renumbered).

We concur with the Defendant's interpretation of these relevant statutory provisions and agree that they evidence a particularly forceful and logical basis for the application of New York law.

We also find that our decision in Jewelcor v. St. Paul Fire and Marine Insurance Co., supra, upon which Plaintiff places primary reliance, is no bar to a determination that New York law should govern the instant controversy. In Jewelcor, an action brought to recover for "business interruption" losses under a multi-cover insurance policy, this Court found that:

Thus, the policy at issue in that case was subject to the rather exacting statutory requirements of this state heretofore mentioned.
*fn11"
In contrast, as noted above, Pennsylvania has no similar regulatory function or interest with respect to the group insurance policy between Metropolitan and General Electric. Additionally, no other "vital interests" such as those identified by the Plaintiff in Jewelcor, i.e., the loss of business to the community, loss of jobs, and the transfer of business to another community, are alleged to be at stake in the present case.
*fn12"
Finally, we note that Jewelcor did not involve a group insurance policy, the interpretation of which should be tempered by the greater need for uniformity and consistency of decision so that "everywhere it shall have the same meaning and give the same protection and that inequalities and confusion liable to result from applications of diverse state laws shall be avoided." Boseman v. Connecticut General Life Insurance Co., supra, 301 U.S. at 206, 57 S. Ct. at 691 (footnote omitted).

For the foregoing reasons, and in accordance with the general conflicts philosophy that "it is fitting that the state whose interests are most deeply affected should have its local law applied ", Restatement (Second), Conflicts of Laws, § 6, comment f, we hold that New York law is the appropriate law to be applied in this case. Accordingly, Plaintiff's motion for summary judgment, premised entirely on Pennsylvania law, must be denied.

III. ENFORCEMENT OF EXCLUSION

Under New York law, the rules for the construction of insurance contracts do not differ from those to be applied for the construction of any other contract. Skandia America Reinsurance Corp. v. Schenck, 441 F. Supp. 715, 723 (S.D.N.Y.1977); see Coppotelli v. INA, 484 F. Supp. 1327 (E.D.N.Y.), mod. on other grounds, 631 F.2d 146 (2d Cir. 1980); Goodrich v. John Hancock Mutual Life Ins. Co., 17 A.D.2d 271, 234 N.Y.S.2d 587 (1962). Accordingly, where the provisions of the insurance policy are clear and unambiguous, they must be given their plain and ordinary meaning and "the Court is not free to modify their terms by judicial construction." National State Bank, Elizabeth, N.J. v. American Home Assurance Co., 492 F. Supp. 393, 396 (S.D.N.Y. 1980); see Government Employees Insurance Co. v. Kligler, 42 N.Y.2d 863, 397 N.Y.S.2d 777, 366 N.E.2d 865 (1977); Malican v. Blue Shield of Western New York, Inc., 52 A.D.2d 190, 383 N.Y.S.2d 719 (1976). Moreover, in New York, if an insurer wishes to exclude or limit its liability from general coverage, its sole responsibility is to couch such exclusion or limitation in clear and unmistakable language so that no average person may be misled. Home Insurance Company v. Aurigemma, 45 Misc.2d 875, 257 N.Y.S.2d 980 (1965). Stated another way, the burden is upon the insurer to prove that coverage does not exist under the policy by demonstrating that the exclusionary clause affords clear notice, in terms which have meaning to the average person, of noncoverage under the policy. Kronfeld v. Fidelity & Casualty Co. of New York, 53 A.D.2d 190, 385 N.Y.S.2d 552 (1976). See also Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 368 F. Supp. 1098, 1118 (S.D.N.Y.1973), aff'd, 505 F.2d 989 (2d Cir. 1974) ("exclusion from general coverage will be effective only when it is clear, explicit, and unambiguous."); Charles J. King, Inc. v. U.S. Fidelity & Guarantee Co., 264 F. Supp. 703 (S.D.N.Y.1967). There is no similar requirement, as in Pennsylvania law, of proof that "the insured was aware of the exclusion or limitation and that the effect thereof was explained to him." Hionis v. Northern Mutual Insurance Co., supra, 230 Pa.Super. at 517, 327 A.2d 363.

In the instant case, there is no contention by Plaintiff that the language of the policy limitation in question is in any way ambiguous, nor does he assert that the average person could be misled as to its true intent. In view of the "clear and unmistakable language" describing the limitation of benefits provision in the insurance policy issued by Metropolitan, this Court must enforce the policy as written and cannot redraft the parties' agreement. See Government Employees Insurance Co. v. Kligler, supra; National State Bank, Elizabeth, N.J. v. American Home Assurance Co., supra; Coppotelli v. INA, supra. Accordingly, since no valid ground exists under New York law for refusing to recognize the intended effect of this policy limitation, Defendant is entitled to summary judgment as a matter of law. Metropolitan's motion for summary judgment will therefore be granted.

An appropriate Order will be entered.

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